Severe Hardship and Public Housing: VCAT Requires Creation of Tenancy Agreement
Thomas v Homes Victoria (Residential Tenancies) [2026] VCAT 70
Decision Date: 5 February 2026
Key Issue: The Tribunal had to determine whether it should order Homes Victoria to enter into a residential rental agreement with Mr Thomas under sections 91S and 91T of the RTA. This required the Tribunal to consider whether Mr Thomas had been residing at the premises as his principal place of residence and whether the hardship criteria under section 91T were satisfied.
Full Case: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2026/70.html
Background
Mr Tristian Thomas applied to VCAT under section 91S of the RTA seeking an order that Homes Victoria enter into a residential rental agreement with him.
Mr Thomas had been living in public housing with his mother, who was the tenant under a rental agreement that began in 2005. After his mother passed away in August 2024, Mr Thomas remained living at the premises.
Homes Victoria disputed that Mr Thomas was entitled to a tenancy and commenced separate possession proceedings, arguing that he was occupying the premises without consent.
Both matters were heard together.
Issues
Whether the Tribunal should order Homes Victoria to enter into a residential rental agreement with Mr Thomas under sections 91S and 91T of the RTA.
This required the Tribunal to determine:
Whether Mr Thomas had been residing at the premises as his principal place of residence; and
Whether the hardship criteria under section 91T were satisfied.
Evidence
Mr Thomas relied on:
Letters and official correspondence addressed to him at the premises
Statutory declarations from neighbours and friends confirming he lived there
Oral evidence that after 99 days in prison in 2023, he returned to the premises to care for his mother until her death
Homes Victoria relied on:
Official documents showing alternative addresses for Mr Thomas
A 2008 statutory declaration by Mr Thomas stating he was not residing at the premises
A Services Australia document listing a different residential address
Homes Victoria declined to cross-examine Mr Thomas.
Tribunal Findings
1. Principal place of residence
The Tribunal accepted Mr Thomas’ unchallenged oral evidence that the premises had been his principal residence since his release from prison in 2023.
Although there were inconsistencies in earlier documents and addresses, the Member found Mr Thomas credible and reliable, including his explanation that the 2008 declaration was made at his mother’s request for financial reasons.
Accordingly, the Tribunal found that the threshold requirements of section 91S were satisfied.
2. Ability to comply with tenancy obligations
Under section 91T(1)(a), the Tribunal found Mr Thomas could reasonably comply with the duties of a renter because:
He received JobSeeker payments, meaning rent would be rebated
He had contributed to the maintenance and upkeep of the premises
Allegations of antisocial behaviour at the property were not attributed to Mr Thomas and were therefore not proven.
3. Severe hardship
The Tribunal found Mr Thomas would suffer severe hardship if forced to leave because:
Homes Victoria had not offered alternative housing
He was eligible for social housing
Eviction would likely lead to homelessness
Evidence from a Tenancy Plus support worker indicated homelessness could increase the risk of:
Reoffending and incarceration
Disconnection from his children
Loss of stability and community connections
The Tribunal held that a real likelihood of homelessness constitutes severe hardship.
4. Hardship comparison
Homes Victoria argued that allocating a three-bedroom property to Mr Thomas would affect its housing waiting list.
However, the Tribunal accepted that:
Mr Thomas was already on the Victorian Housing Register
If granted the tenancy, he would be removed from the waiting list
Therefore, any hardship to Homes Victoria in managing its housing stock was negligible compared to the severe hardship Mr Thomas would face if evicted.
Decision
VCAT ordered that:
Homes Victoria must enter into a residential rental agreement with Mr Thomas
The agreement must be on the same terms as the previous tenancy
Because a tenancy was created, Homes Victoria’s separate possession application was dismissed.
Key Legal Principles
This case confirms that:
Occupants of public housing may apply for a new tenancy after a tenant’s death under sections 91S and 91T of the RTA.
The Tribunal will closely examine whether the premises is the applicant’s principal place of residence.
Unchallenged oral evidence may be accepted where credibility is established.
A real risk of homelessness can constitute severe hardship.
When assessing hardship to a public housing authority, the Tribunal may focus on the administrative impact on the housing waiting list, rather than the circumstances of individual applicants on that list.
